Gallagher v. Day , 107 F. App'x 402 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 10, 2004
Charles R. Fulbruge III
Clerk
No. 03-30767
Summary Calendar
STEVEN GALLAGHER,
Petitioner-Appellant,
versus
EDGAR C. DAY, JR.,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Louisiana
(03-CV-516-D)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Steven Gallagher (“Gallagher”) appeals
the district court’s dismissal for lack of jurisdiction of his 28
U.S.C. § 2254 petition in which he challenged the Louisiana
Department of Public Safety and Corrections’s (“LDPSC”) refusal to
allow him to earn good-time credits. Gallagher originally filed
his habeas petition in the Eastern District of Louisiana, which
transferred it to the Middle District of Louisiana based on the
LDPSC’s geographical location in the transferee district. In turn,
the transferee district dismissed Gallagher’s petition for lack of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
jurisdiction because he had neither been convicted and sentenced
nor incarcerated there. Gallagher argues on appeal that the Middle
District of Louisiana was correct in its jurisdictional ruling and
that his 28 U.S.C. § 2254 petition should be heard in the Eastern
District of Louisiana where he had filed it in the first place. We
agree.
A prisoner may bring a 28 U.S.C. § 2254 petition in either the
district where he is confined or the district where the state court
that convicted and sentenced him is located. See 28 U.S.C. §
2241(d); Carmona v. Andrews, 357 F.3d 535, 537-38 (5th Cir. 2004).
The LDPSC is not a state court, either administratively or for the
purposes of 28 U.S.C. § 2241(d). See LA. REV. STAT. ANN. § 36:401;
Carmona, 357 F.3d at 538. As Gallagher was convicted and sentenced
in a state court located in the Eastern District of Louisiana and
is incarcerated in a state facility likewise located in that
district, the Eastern District of Louisiana is the only court with
jurisdiction to hear his 28 U.S.C. § 2254 petition. See id. at
537-39. Accordingly, the judgment of dismissal is affirmed and the
case is remanded to the Middle District of Louisiana with
instructions to transfer it back to the Eastern District of
Louisiana.
DISMISSAL AFFIRMED; CASE REMANDED with instructions.
2